U.S. Appeals Court Eases the Burden on Texas to Enact Abortion Safety Regulations

By Clarke D. Forsythe —
November 5, 2013

When a Texas federal district court in Planned Parenthood v. Abbott struck down and issued an injunction against two sections of Texas’s health and safety regulations on abortion clinics on October 28, the media waxed poetic. Over the next 24 hours, wide coverage was given to the decision, even by a local TV affiliate of a national network in Toledo at about 6:00 a.m. on Tuesday. Meanwhile, the media gave a collective yawn for the U.S. Court of Appeals for the Fifth Circuit’s stay of that injunction on Thursday, October 31. Also ignored: the fact that the decision to stay the injunction was issued by a panel of three women judges — Priscilla Owen, Jennifer Elrod, and Catharina Haynes — after they reviewed the medical record that Texas compiled in support of its regulations. (As of Monday afternoon, Planned Parenthood has asked Justice Scalia for a stay on the Fifth Circuit’s Thursday decision; that could be referred to the full Court if Justice Scalia denies the stay.)

But in spite of the media’s lack of coverage, large issues are in play. At stake in Abbott are two regulations focused on protecting maternal health from the risks of abortion: a requirement that the abortion provider have admitting privileges at a local hospital in case the abortion patient needs to be admitted for post-abortion medical complications, and regulations on the performance of chemical abortions.

The district court in Abbott reached the surprising conclusion that “the act’s provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” In other words, although the court found no “undue burden” from the regulations, it gave abortion providers in Texas a boundless discretion to ignore the regulations if they invoke the unlimited “health” exception of Doe v. Bolton, which defined “health” to include “emotional well-being.” If the provider thinks that the pregnancy will affect the “emotional well-being” of the woman, he can ignore the regulations.

On Thursday, the Fifth Circuit limited the district court’s sweeping injunction against the regulations of chemical abortions. The appeals court allowed the district court’s injunction to continue pending appeal only “with respect to a mother who is 50 to 63 days from her last menstrual period” for whom “a surgical abortion is not a safe and medically sound option for her” due to “a physical abnormality or preexisting condition of the mother,” and required the physician doing the abortion (not just any doctor) to make that determination.

The second requirement struck by the district court in Abbott — requiring admitting privileges at a local hospital — is a reasonable requirement of credentials and medical safety, but what the requirement really spotlights is the myth that abortion is “between a woman and her doctor”: Abortions are increasingly done by strangers who fly-in to do abortions and never see the woman again. The Fifth Circuit noted that “[t]here was evidence that such a requirement would assist in preventing patient abandonment by the physician who performed the abortion and then left the patient to her own devices to obtain care if complications developed,” and that “it is the practice of many abortion physicians to instruct their patients to seek care from an emergency room if complications arise.” This is substandard care that severs the doctor-patient relationship and shirks responsibility for post-abortion complications and the reporting of complications. The appeals court lifted the injunction against the admitting-privileges requirement pending appeal.

The Fifth Circuit’s remarkable decision is due to two key factors: the Supreme Court’s 2007 decision in Gonzales v. Carhart and a good medical record made by the state attorney general’s office.

Gonzales was a significant win for states in passing abortion regulations, because the Court gave guidance to federal courts to defer to state legislatures when they enact medical regulations of abortion. Since Gonzales, however, abortion advocates have urged federal courts to ignore or limit Gonzales to its limited facts, and several have done so. The district court’s decision in Abbott is a prime example. Thursday’s decision by the Fifth Circuit, by contrast, scrupulously applied Gonzales to lift the injunction pending appeal.

Abbott is unique in its focus on protecting maternal health. In the 30-plus abortion cases that the Supreme Court has decided on the merits since 1973, most of the provisions have focused on protecting the life of the unborn child. The Court has rarely if ever addressed the risks to women from abortion based on medical evidence in a trial record. Instead, the Court has stated in the abstract that the state has an interest in protecting “maternal health,” as in the Casey decision in 1992, where the Court said that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.”

Though it’s too soon to know whether Abbott will get to the Supreme Court, Abbott creates an opportunity for the Court to review a real record on the risks of abortion to women, and on the unregulated public-health vacuum that the Court has negligently allowed for 40 years.

Abbott also raises some larger questions about the future of the Supreme Court and abortion. Based on the medical myth in the Roe decision that “abortion is safer than childbirth,” the Supreme Court has operated since Roe under the assumption that “health” concerns are a one-way ratchet in favor of the fastest abortion possible, based on the supposition that there are only risks from delaying an abortion, none from abortion itself.

There are now three challenges to that myth: fundamental challenges to the dysfunctional abortion-reporting system in the United States where all data reporting is voluntary, maternal-mortality data showing an increasing rate of maternal mortality from abortion after the first trimester, and the growing body of international data on the long-term risks to women from abortion.

Those challenges set up this paradigm shift: How will the maternal-mortality data and the long-term- risks data affect the consideration of maternal “health”? Will some sort of analysis balancing the risks of “delay” with the risks to women from abortion be required? Will abortion clinics be required to demonstrate that the risks of not having the abortion outweigh the risks of having the abortion? If abortion advocates likely contend that the principle underlying Roe is autonomy, not the relative safety of abortion, will the Supreme Court dismiss data on the relative risks from abortion, or will the Court allow the states to regulate or prohibit abortion if abortion advocates cannot demonstrate that the risks of not having the abortion outweigh the risks of having the abortion? This new paradigm may first be addressed in Horne v. Isaacson, involving Arizona’s five month (20 week) limit that is pending at the Court now.